The Fifth Amendment Does Not Enact Mr. William Jacobson’s Pro-Corporate Polluter Policy Preferences

William Jacobson provides us with the latest example of a Republican arguing that various random provisions of the Constitution should be read as nullifying the results of the 2008 elections and providing free-floating protection against policies unfavorable to powerful Republican interests:

Under what legal authority did the “rule of law” President make the decision as to how much a private entity would pay and then “inform” the private party that it must obey or face the harsh retribution of the federal government? […] Respect for the Due Process Clause of the Fifth Amendment is what separates us from North Korea or Venezuela (emphasis mine).

Leaving aside the sick comedy of being lectured by defenders of Bybee and Yoo about the importance of the due process of law and the dangers of arbitrary executive power, Jacobson’s post is necessarily rather short on explanations of why the actual policy (as opposed to the one he imagines) in question violates the Fifth Amendment. In particular, he seems to have missed some key terms from this story, including “BP will create,” “escrow,” and “set aside.” BP will not be denied its day in court; it has simply agreed to set aside money to pay the judgments that are overwhelmingly likely to be found against it. The agreement voluntarily entered into by BP ensures that it can’t escape legal judgments by just paying out all of its current profits as dividends and then claiming to be broke.

At any rate, given that 1)BP agreed to the fund, and 2)it will be afforded the full protections of due process of law as it faces damage suits for destroying the Gulf, how this agreement violates the Fifth Amendment is rather mysterious. What about the text forbids this? What’s the case law? I’m guessing that we’re not going to hear answers to these questions.